Dr Nikhil Gokani,
Lecturer in Consumer Protection and Public
Health Law at the University of Essex, Chair of the Alcohol Labelling and Health Warning
International Expert Group at the European Alcohol Policy Alliance,
Vice President of the Law Section at the European Public Health
Association, and member of the Technical Advisory Group on Alcohol Labelling
at WHO.
*This blog is a condensed
version of the following article: N Gokani, ‘Booze, Bottles and Brussels:
Member States’ Dilemma on Alcohol Health Warnings’ (2024) 13(2) Journal of
European Consumer and Market Law 97-102. The full article is available here. An open access version is also available here.
Art credit: William Hogarth, Gin Lane
Alcohol and the
need for effective alcohol labelling
Alcohol is a causal
factor in more than 200 diseases, injuries and disabilities.
Even at lower levels of consumption, alcohol is associated with increased risks
of heart diseases and stroke, liver cirrhosis, cancers and foetal alcohol
disorders. In the EU, alcohol consumption causes between 255,000 and 290,000
deaths per year. Beyond health, alcohol results in significant social and economic losses
to individuals and society at large.
Despite negative consequences
of drinking alcohol, consumer awareness of its harms is low. The World Health
Organization (‘WHO’) has repeatedly called
on States to provide consumers with essential information through alcohol labelling.
The EU has itself acknowledged the
importance of consumer alcohol information, reflecting the foundation of EU consumer protection policy
that consumers can be empowered through becoming well informed.
EU level
regulation of alcohol labelling
Current EU rules in Regulation 1169/2011 on the provision of food
information to consumers (‘FIC Regulation’) require alcoholic
beverages with a content over 1.2% alcohol by volume (‘ABV’) to include alcohol
strength on the label. Other health-related information, including ingredients
list and a nutrition declaration, which are required on the labels of most food
products, are exempt for alcoholic beverages above 1.2% ABV. EU law does not
require any other health-related information to appear on the label.
Member State developments on alcohol labelling
Health-related warnings are not explicitly addressed under
EU law and several Member States have introduced national mandatory labelling rules.
These have focused on two forms on messaging: mandatory labelling relating to the
age of consumption, and messaging against drinking during pregnancy.
In October 2018, Ireland signed into law its Public
Health (Alcohol) Act 2018. In May 2023, Ireland signed into law as its Public
Health (Alcohol) (Labelling) Regulations 2023. From May 2026, non-reusable
alcohol containers will be required to include the following labelling.
While feedback
from civil society organisations representing public health and consumer
protection expressed strong support, industry bodies from across the globe
responded opposing the measure. The feedback questioned the compatibility of
the Irish Regulations, and warning labelling in general, with EU law in three
key ways, which are addressed in turn below.
Legal objection 1: The Irish rules constitute a
discriminatory barrier to free movement
National labelling rules fall within the scope of the FIC
Regulation, adopted under the competence
the EU
shares with Member States in the internal market.
In respect of matters not “specifically harmonised” by the
FIC Regulation, there appears to be minimum harmonisation: Article 38(2) permits
Member States to adopt certain national measures. Health warnings are not
explicitly mentioned in the FIC Regulation, which might suggest health warning
labelling is not “specifically harmonised”. Therefore, Member States may
introduce national measures providing these do not undermine the protection in
the FIC Regulation and are not contrary to general Treaty provisions.
In respect of matters which are “specifically harmonised” by
the FIC Regulation, there appears to be maximum harmonisation: a declared desire
to create uniform protection; an exclusivity clause, which prohibits the sale
of non-compliant goods; and a market access clause which precludes national
measures unless authorised by EU law. The mandatory particulars have been fully
considered and listed, suggesting that mandatory labelling particulars have been
“specifically harmonised” and therefore subject to maximum harmonisation. If
alcohol health warning labelling is “specifically harmonised”, Member States
may not undermine the protection in the FIC but may exceed it subject to
general Treaty rules where the FIC Regulation itself allows. In this
respect, the FIC Regulation includes a derogation which could allow Member
States to exceed the standards under Article 39(1) to adopt rules requiring
additional mandatory particulars justified on public health or consumer
protection grounds.
Therefore, irrespective of whether health warnings labelling
is specifically harmonised or not, under existing harmonisation, Member States
are able to move forward with national warning labelling.
Legal objection 2: That the Irish rules are not consistent
with existing EU harmonisation
The base protections set out in the FIC Regulation, which Member
States may not undermine, are set out in Article 7 FIC as “fair information
practices”. Food information shall be “accurate”, “clear and easy to
understand”, and “not be misleading” particularly as to the “characteristics of
the food” or “by attributing to the food effects or properties which it does
not possess”.
Accurate: The Irish labelling is accurate when
assessed against ordinary principle of scientific consensus. The evidence that
“Drinking alcohol causes liver disease” is well-established, even with
relatively lower levels of consumption and increasing with higher consumption.
The evidence on the dangers of drinking during pregnancy is also clear. Alcohol
intake can affect ability to conceive; brings about pregnancy complications;
and interferes with foetal development known as foetal alcohol spectrum
disorders, including low birth weight, small for gestational age and preterm
birth. No amount of alcohol is considered safe during pregnancy. There is also
well-established evidence that “There is a direct link between alcohol and
fatal cancers”. Alcohol is classified as a group
1 carcinogen by the WHO International Agency for Research on Cancer as
there is a proven causal link between alcohol and at least seven cancers. The
risks arise irrespective of the type of alcohol consumed, exist at lower levels
and increase with higher consumption.
Clear: The requirement that information is “clear”
relates to legibility and visibility. The Irish warnings are likely to meet this
requirement not least as they appear against a white background, are within a
black box and have a minimum size.
Not misleading: The Irish labelling is also not
misleading. In line with broader consumer protection in the internal market,
compliance with information rules is assessed against the behaviour of the “average
consumer who is reasonably well informed and reasonably observant and
circumspect taking into account social, cultural and linguistic factors”. This
notional average is an active player in the market who reads information, has
background knowledge, is critical towards information, does not take
information literally, and will not be misled easily if sufficient information
is available. This average consumer is likely to understand the meaning in the
labelling. Indeed, the pregnancy warning simply advises women not to drink
during pregnancy as per national health guidance. The message that “There is a
direct link between alcohol and fatal cancers” communicates association with
fatal cancers but does not go as far as communicating a direct causal
relationship notwithstanding the well-established evidence on causation. The
warning that “Drinking alcohol causes liver disease” is not misleading as liver
disease occurs with even relatively lower levels of consumption.
Legal objection 3: That the Irish rules are not
proportionate
National alcohol labelling must also be proportionate, which
it is when it is suitable
and necessary to achieve its objective.
Legitimate objective: The primary objective for
health messaging labelling is to inform consumers. While informing consumers
appears to be the primary objective, this is part of a broader, secondary
objective of reducing consumption. As the Irish
Regulations have been introduced under the Article 39 derogation, the
objectives are limited to “the protection of public health” and “the protection
of consumers”. Alcohol control clearly falls within these broad grounds as the CJEU
has consistently held that combating alcohol-related harm is an important
and valid goal.
Suitability: Under the suitability limb of
proportionality, it is necessary to determine whether the proposed labelling
can attain its objectives of informing consumers and contributing to reduction
in consumption as part of a broader suite of measures. In respect of the
primary objective, evidence demonstrates that there is a deficit of knowledge
about the health consequences of alcohol consumption and labelling informs
consumers. Studies show that alcohol health warnings specifically lead to increased knowledge of
health risks, including cancer, liver disease and pregnancy. Indeed, EU law already requires certain
food products to be labelled with health warnings. As regards the secondary
objective, there is also evidence supporting the contribution of labelling to
reduction in harms and consumption.
Necessity: Under the necessity limb of
proportionality, it must be determined whether a less intrusive measure can be equally
effective as the proposed labelling to attain the objectives. Other measures
are not equally effective. Labelling is available at both the point of purchase
and point of consumption. Labelling is available on every container. It is
targeted so that everyone can see the label when they see alcohol. It mitigates
the effect of promotional marketing messaging on labelling. Ongoing costs are minimal.
Moreover, the CJEU has consistently held that labelling is less restrictive
than other interventions.
Moving towards effective alcohol health warning labelling
The objections raised by industry, that EU food law is a
barrier to national rules on alcohol health warning labelling, are legally
unsustainable. Therefore, in the absence of EU level action, Member States must
take responsibility for moving forward independently. Let us hope the rest of
the EU follows Ireland’s lead.
Nevertheless, EU institutions must also support Member
States to tackle alcohol-related harm. Tides appeared to be turning with Europe’s
Beating Cancer Plan, in which the Commission committed to introduce
proposals on alcohol health warning labelling by the end of 2023, but the
deadline has passed with no formal action. Let us also hope the EU decides to
prioritise the health of consumers over the interests of economic actors.
